Court rethinks ruling that bolstered Trump’s authority over troops
Three of the nation’s most powerful judges gathered Wednesday in Pasadena for a rare conclave that could rewrite the legal framework for President Trump’s massive troop deployment in cities across the United States.
The decision to flood Los Angeles with thousands of federalized troops over the objection of state and local leaders shocked the country last June. Five months later, such military interventions have become almost routine.
But the question of whether deployments can expand — and how long they can continue — hinges on a new reading of an obscure subsection of U.S. code that determines the president’s ability to send the National Guard and federal service members. This code has been the subject of heated debate in courts across the country.
Virtually all of these cases hinge on the 9th Circuit’s decision in June. The justices found that the law in question requires “a great level of deference” to the president in deciding when protest turns into rebellion and whether on-the-ground actions are warranted in response.
On Wednesday, the same three justices — Jennifer Sung of Portland, Eric D. Miller of Seattle and Mark J. Bennett of Honolulu — took the rare step of reviewing it, signaling their willingness to radically rewrite the terms of engagement that supported Trump’s deployments.
“I guess the question is, why are a few hundred people engaging in disorderly behavior and throwing things at a building over the course of two days of rebellion-like severity? said Miller, who was appointed to the bench during Trump’s first term. “Violence is constantly used to thwart the enforcement of federal law. It happens every day.”
The question he asked tore the court system apart, separating district judges from appeals panels and the Pacific Coast from the Midwest. Some Trump-appointed judges have sharply broken with their colleagues on the issue, including on the 9th Circuit. Miller and Bennett appear to disagree with Ryan D. Nelson and Bridget S. Bade, who expanded on the court’s June ruling in a ruling Monday allowing federalized troops to deploy to Oregon.
Most agree that the statute itself is esoteric, vague and untested. Unlike the Insurrection Act, which generations of presidents have used to quell spasms of violent domestic unrest, the law invoked by Trump has virtually no historical footprint and little precedent to define it.
“It has only been used once in the history of our country since it was signed into law 122 years ago,” California Attorney General Samuel Harbourt said Wednesday.
Lawyers on both sides have turned to legal dictionaries to define the word “rebellion” in their favor, because the law itself offers no clues.
“Defendants have not presented a credible interpretation of the term ‘rebellion’ in this litigation,” Harbourt told the panel Wednesday. “We continue to see defendants relying on this interpretation across the country and we are concerned that the breadth of the definition the government has relied on … includes any form of resistance.”
The wiggle room has left courts wrestling with the most basic facts before them — including whether what the president claims needs to be proven.
In the Oregon case, U.S. District Judge Karin Immergut of Portland, another Trump appointee, called the president’s claims of a rebellion there “irrelevant to the facts.”
But a separate 9th Circuit panel rejected his decision, finding that the law “does not limit the facts and circumstances that the President may consider” when deciding whether to use troops domestically.
“The president has the authority to identify and evaluate the relevant facts,” the court wrote in its Monday ruling.
Nelson went further, calling the president’s decision “absolute.”
Upon closer examination, Sung reported a shift toward the opposite interpretation.
“The court says that when the law confers discretion, it is based on certain facts,” she said. “I don’t see the court saying that the underlying decision as to whether there is a factual basis is inherently discretionary.”
This is much more like the 7th Midwest Circuit’s decision in the Chicago case, which concluded that nothing in the statute “makes the President the sole judge of whether or not these prerequisites exist.”
“Political opposition is not rebellion,” the 7th Circuit judges wrote. “A protest does not become a rebellion simply because protesters advocate myriad legal or policy changes, are well organized, call for significant changes in the structure of the U.S. government, use civil disobedience as a form of protest, or exercise their Second Amendment right to carry firearms as the law currently allows.
The Trump administration’s appeal of the decision is currently before the Supreme Court on an emergency basis.
But experts said even a high court ruling in that case might not dictate what might happen in California — or New York, for that matter. Even if the justices rule against the administration, Trump could choose to invoke the Insurrection Act or another law to justify his next actions, an option he and other officials have repeatedly raised in recent weeks.
The administration has signaled a desire to expand the power it already enjoys, telling the court Wednesday that there were no limits on where troops could be deployed or how long they could remain in the president’s employ once he took control.
“Do you think that no matter how much the ground changes, the district court or the review would not be able – in a month, six months, a year, five years – to verify whether the conditions still support [deployment]?”
“Yes,” McArthur said.
Bennett pressed this point, questioning whether, under current law, the militia federalized by George Washington to quell the Whiskey Rebellion of 1794 could “remain called up forever”—a position the government again affirmed.
“There’s not a word in the law that talks about how long they can stay in federal service,” McArthur said. “The President’s determination as to whether the exigency has arisen, that determination is within his sole and exclusive discretion.”
